S T A T E O F N E W Y O R K
________________________________________________________________________
9871
I N A S S E M B L Y
April 19, 2012
___________
Introduced by M. of A. GOLDFEDER -- read once and referred to the
Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
prohibiting the department of environmental conservation from issuing
a permit or entering into a memorandum of understanding authorizing
the placement of certain dredged material for the purpose of filling
borrow pits in Jamaica Bay
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. Due to the increase in vessel size in
recent years, New York State waterways such as channels, berthing areas
and harbors are being excavated to maintain sufficient depth for safe
and efficient vessel operation. This process is called "dredging" and is
done by the US Army Corps of Engineers.
Dredged material is naturally accumulated sediment. Under the US Army
Corps of Engineers, Dredged Material Management Plan (DMMP), dredged
material is not sewage sludge, nor has it been historically character-
ized as hazardous, toxic or radioactive waste under the Federal Resource
Conservation and Recovery Act (RCRA) standards. In fact, any dredged
material characterized as hazardous would not be managed under the DMMP,
but regulated by the appropriate responsible agencies and disposed of at
a properly permitted hazardous waste facility. According to the United
States environmental protection agency region 2, however, much of the
dredged material does contain some contaminants at varying concen-
trations, as does much of the sediment throughout the harbor. These
contaminants enter the waterways of the harbor from a number of differ-
ent sources, many of which originate outside the harbor including many
upland sources. The harbor complex itself is densely populated and
certain areas of the harbor complex are heavily industrialized. The
system receives inputs of contaminants from a variety of sources includ-
ing municipal sewage treatment plants, industrial discharges, combined
sewer outfalls, storm runoff and landfill discharge. There are specific
sites which are also suspected of being significant contributors to
sediment contamination in the NY/NJ Harbor System including The Diamond
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15200-03-2
A. 9871 2
Alkali (Passaic River) site and the Hudson River PCB site. All of these
inputs combine to cause significant contamination of harbor sediments.
This indicates that some contaminants may be present at concentrations
that result in an unacceptable risk of toxicity in the testing of aquat-
ic organisms or have the potential to accumulate to unacceptable concen-
trations within the tissues of these organisms. This process is called
bioaccumulation.
The United States environmental protection agency region 2 classifies
dredged material into one of three categories based on sediment toxicity
and bioaccumulation tests:
1. Category I: Sediments that meet ocean disposal criteria. Test
results indicate no unacceptable toxicity or bioaccumulation. These
sediments are acceptable for "unrestricted" ocean disposal. There are no
potential short-term (acute) impacts or long term (chronic) impacts. No
special precautionary measures are required during disposal of category
I sediments;
2. Category II: Sediments that meet ocean disposal criteria. Test
results indicate no significant toxicity but a potential for bioaccumu-
lation. To protect from this potential for bioaccumulation, EPA and the
Corps will require appropriate management practices such as capping.
This is referred to as "restricted" ocean disposal; and
3. Category III: Sediments that do not meet ocean disposal criteria.
These sediments are those that fail acute toxicity testing or pose a
threat of significant bioaccumulation that cannot be addressed through
available disposal management practices. These sediments cannot be
disposed in the ocean.
Jamaica Bay was also dredged to supply soil for a number of
construction projects. This process created borrow pits in the bay.
These borrow pits have been identified as an attractive alternative for
the disposing of type II and type III dredge material as the cost factor
is one tenth of upland disposal and this concept has been suggested a
number of times by the Army Corps of Engineers over the last twenty
years. The numerous environmental organizations and stake holder groups
have rejected this proposal which they feel is extremely hazardous and
one that will ultimately create a risk to the entire food chain of the
Jamaica Bay Ecosystem as this contaminated material mixes with and is
absorbed by the various organisms within the bay. The fact that the
federal government prohibits this material to be disposed of in the open
ocean speaks volumes as to its content and hazard and its disposal
should be prohibited in Jamaica Bay as well. Jamaica Bay has been iden-
tified as one of the most critical estuaries on the northeast coast and
as part of our national park system it deserves to be protected for the
enjoyment of future generations.
This act would prohibit the New York state department of environmental
conservation from authorizing the US Army Corps of Engineers or any
other agency or organization from using hazardous material such as cate-
gory II or III material in the filling of the Jamaica Bay borrow pits.
S 2. Subdivision 1 of section 15-0505 of the environmental conserva-
tion law, as amended by chapter 233 of the laws of 1979, is amended and
a new subdivision 3-a is added to read as follows:
1. No person, local public corporation or interstate authority shall
excavate or place fill below the mean high water level in any of the
navigable waters of the state, or in marshes, estuaries, tidal marshes
and wetlands that are adjacent to and contiguous at any point to any of
the navigable waters of the state and that are inundated at mean high
water level or tide, without a permit issued pursuant to subdivision 3
A. 9871 3
of this section. For the purposes of this section, fill shall include,
but shall not be limited to, earth, clay, silt, sand, gravel, stone,
rock, shale, concrete (whole or fragmentary), ashes, cinders, slag,
metal, DREDGED MATERIAL or any other similar material whether or not
enclosed or contained by (1) crib work of wood, timber, logs, concrete
or metal, (2) bulkheads and cofferdams of timber sheeting, bracing and
piling or steel sheet piling or steel H piling, separated or in combina-
tion. Nothing contained in this section is intended to be, nor shall be
construed to limit, impair or affect the memorandum of understanding
which any state department enters into with the Department of Environ-
mental Conservation or the general powers and duties of the Department
of Transportation relating to canals or the general powers and duties of
the Department of Environmental Conservation relating to flood control.
3-A. THE DEPARTMENT SHALL NOT GRANT A PERMIT TO OR ENTER INTO A MEMO-
RANDUM OF UNDERSTANDING WITH ANY PERSON, LOCAL PUBLIC CORPORATION,
INTERSTATE AUTHORITY OR ANY OTHER ENTITY ALLOWING THE USE OR PLACEMENT
OF HAZARDOUS MATERIAL, INCLUDING MATERIAL CLASSIFIED AS CATEGORY II OR
III MATERIAL BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION
2, IN THE FILLING OF THE JAMAICA BAY BORROW PITS.
S 3. This act shall take effect immediately.